TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Thursday, June 2, 2016

Indiana Tech Law School's First 20 Graduates Face Pressure To Be Exemplary Attorneys

Indiana Tech (2016)Indiana Lawyer, Indiana Tech Law School Graduates Under Pressure to be Exemplary Attorneys:

The 20 graduates who walked across the commencement stage May 14 and received their J.D. degrees were part of a historic day for Indiana Tech Law School as they were the first to graduate from the state’s fifth law school.

But faculty and graduates acknowledged that the graduation, while a significant milestone, is not the end of their work.

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June 2, 2016 in Legal Education | Permalink | Comments (1)

99-Year-Old Former IRS Commissioner Mortimer Caplin On Life And Taxes

CaplinWall Street Journal, Q&A: 99-Year-Old Former IRS Commissioner Mortimer Caplin on Life and Taxes:

Mortimer Caplin has been watching the drama around the Internal Revenue Service since 2013 with the perspective of someone who has seen it all before, because he has. Mr. Caplin, who will turn 100 years old in July, ran the U.S. tax agency from 1961 to 1964 before becoming a founding member of the Caplin & Drysdale law firm in Washington.

He spoke to Real Time Economics about the IRS and how tax law has changed over time. Here are excerpts from the conversation:

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June 2, 2016 in IRS News | Permalink | Comments (0)

Today's Law, Society & Taxation Panels

L&SToday's Law, Society, and Taxation panels at the 2016 Law & Society Association Annual Meeting in New Orleans (program here):

  • Panel #1:  Business Taxes
  • Panel #2:  Controversies in Theory and Practice
  • Panel #3:  Comparative Tax Issues
  • Panel #4:  Evasion and Compliance
  • Panel #5:  Deterrence and Enforcement

Panel #1:  Business Taxes (Diane Ring (Boston College), Chair/Discussant))

  • Karie Davis-Nozemack (Georgia Tech), The Conceptual Incompatibility of Corporate Tax Avoidance with CSR and Stakeholder Theory
  • Calvin Johnson (Texas), A Conceptual Framework for Capital Gains
  • Melina Rocha Lukic & José Roberto Afonso (Fundacao Getulio Vargas), An Empirical Analysis of the Allowance for Corporate Equity (ACE) System in Brazil
  • Doron Narotzki (Akron), Corporate Social Responsibility and Taxation: The Next Step of the Evolution, 16 Hous. Bus. & Tax J. 167 (2016)

Panel #2:  Controversies in Theory and Practice (Philip Hackney (LSU), Chair/Discussant)

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Villanova Hosts Symposium Today On Tax Policy And The 2016 Election

Villanova Grad Tax Program LogoThe Villanova Graduate Tax Program hosts its inaugural tax policy symposium today on Fundamental Tax Reform and Tax Policy Issues in Election Year 2016:

Welcome:  Edward A. Liva (Professor of Practice and Director, Villanova Graduate Tax Program)

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

16th Annual Oregon Tax Institute

OregonThe 16th Annual Oregon Tax Institute kicks off today in Portland.  Tax Prof speakers include:

  • Howard Abrams (San Diego), Partnership Leveraged Distributions: Traps Getting In and Tips on Getting Out

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

IRS Releases Spring 2016 SOI Bulletin

The IRS Scandal, Day 1120

IRS Logo 2Politico, How the GOP Effort to Oust IRS Chief Could Backfire, by Rachel Bade & Katy O'Donnell:

For over a year, House conservatives have been clamoring to remove IRS Commissioner John Koskinen. But now that the impeachment process is moving forward, they face a delicate decision: Are they willing to toss 200-plus years of precedent to bring him down?

If House conservatives press ahead with an impeachment of the embattled tax chief, they’d be voting to remove a relatively low-level executive-branch leader for one of the most minor offenses in American history, several impeachment experts told Politico. That decision could, effectively, lower the threshold for congressional punishment of an executive-branch authority from here on out — and ensure a wave of new proceedings against government officials who have tangled with Congress in the past.

Impeachment has typically been used to punish treason, bribery and other “high crimes” in the top echelons of government. But Koskinen’s impeachment — based on an argument that he failed to comply with a congressional subpoena — would effectively expand that definition to include gross incompetence.

It’s never been done before.

“Nobody has ever been impeached for what we’ll call ‘gross negligence.’ … It has never, in our entire history, despite all the partisan difference, been the basis for impeachment in the past,” said North Carolina School of Law professor Michael Gerhardt, an impeachment expert who has testified before Congress on the matter.

And that, experts say, could touch off a rash of impeachment proceedings, as Hill investigators line up to take on other agency heads who have crossed them. ...

[A]n impeachment of Koskinen, even just in the House, would be rare. Almost all the officials the House has acted against were judges. And two — Andrew Johnson and Bill Clinton — were presidents. Only once, 140 years ago, in 1876, did the House move to impeach an agency chief, Secretary of War William Belknap, on charges of corruption.

Even then, Belknap was an official Cabinet member, unlike Koskinen, and Congress’ historical-research arm suggests that there’s still an open question about whether Congress can impeach someone below the Cabinet level.

“A question which precedent has not thus far addressed is whether Congress may impeach and remove subordinate, non-Cabinet level executive branch officials,” reads a Congressional Research Service study on impeachment from last October. “Historical precedent provides no examples of the impeachment power being used against lower-level executive officials.”

Experts think the House can easily get around that argument to make the case that Koskinen may be impeached, even though impeaching an executive below the presidential level is unusual.

But outside experts say the actual case against Koskinen is relatively weak — and troubling as a precedent. The House Judiciary Committee is slated to debate the case in the coming days.

Republicans have two key arguments against Koskinen: that he failed to comply with a subpoena and misled Congress. On Koskinen’s watch, lower-level IRS employees deleted backup tapes that were central to a congressional investigation about the way conservative groups were treated at the IRS — well after Congress asked for them.

While some conservatives suspect a coverup, the best case they can argue against him is that Koskinen did not do the responsible thing in ensuring all his people understood top-level instructions that they were supposed to preserve those files.

He also failed to notify Congress about the issue for more than four months, something Oversight Chairman Jason Chaffetz (R-Utah) has argued amounts to lying. ...

[E]xperts still aren’t sure that gross mismanagement constitutes a “high crime.” Gerhardt said it could, but only if the House can prove some sort of ill will or bad intent on Koskinen’s part.

“If someone were acting in good faith and made a mistake … we don’t use impeachment for that. But if someone was deliberately trying to obstruct justice like, say [President] Richard Nixon, then we say, OK, that’s bad intent and bad misconduct, providing the right level for impeachment,” he said.

The problem, he continued, is that Congress has to prove ill will, and he’s not sure it can do that in Koskinen’s case.

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June 2, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (5)

Wednesday, June 1, 2016

Congratulations To The Newest Pepperdine Members Of The California Bar


June 1, 2016 in Legal Education | Permalink | Comments (0)

Trump Reaps Huge Tax Break By Moving Trademarks To Delaware

TrumpBloomberg:  Trump Gets Chance for Tax Cut Moving Trademarks to Delaware, by Lynnley Browning:

As Donald Trump prepared for the Republican primaries, he transferred dozens of his most prized assets, the “Trump” trademarks that adorn everything from hotels to ties to his U.S. golf courses, into a new Delaware-based company — a move that offers him a chance to cut his income-tax bills.

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June 1, 2016 in Political News, Tax | Permalink | Comments (2)

U.S. News Law School Rankings:  Yield

2017 U.S. News LogoU.S. News & World Report, 10 Law Schools Where the Most Accepted Students Enroll:

Yale University, which ranks No. 1 in the 2017 Best Law Schools, topped the list of ranked ​institutions with the highest yield​—the percentage of accepted students who enrolled—at 74.3 percent in fall 2015. ... Harvard University, which ranked in a tie for No. 2 among top law schools, was third on the list with a yield of 60.4 percent. ...

​​Not all schools on the list were as highly ranked. Brigham Young University, where 68.8 percent of admitted students enrolled and which ranks No. 38, came second after Yale. The school, which is affiliated with the Church of Jesus Christ of Latter-day Saints,​ offers discounted tuition to members of the church.

School Accepted Enrolled Yield U.S. News Rank
1.  Yale 269 200 74.3% 1
2.  BYU 186 128 68.8% 38 (tie)
3.  Harvard 931 562 60.4% 2 (tie)
4.  Southern 408 210 51.5% RNP*
5.  UNLV 224 104 46.4% 78 (tie)
6.  Indiana—Indianapolis 562 254 45.2% 100 (tie)
7.  Liberty​  113 51 45.1% RNP
8.  UMKC 314 140 44.6% 123 (tie)
9.  Arkansas—Little Rock 266 115 43.2% 136 (tie)
10.  N. Carolina Central 473 199 42.1% RNP

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June 1, 2016 in Law School Rankings, Legal Education | Permalink | Comments (1)

Ranking The States By Fiscal Condition, From Top (AK, NE, WY) To Bottom (CT, MA, NJ)

George Mason University Mercatus Center, Ranking the States by Fiscal Condition, 2016 Edition:

A new study for the Mercatus Center at George Mason University ranks each US state’s financial health based on short- and long-term debt and other key fiscal obligations, such as unfunded pen­sions and healthcare benefits. This 2016 edition updates the version the Mercatus Center pub­lished in 2015. Using the approach pioneered in 2015, the 2016 edition presents information from each state’s audited financial report in an easily accessible format, this time including Puerto Rico to provide a benchmark of poor fiscal performance.


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June 1, 2016 in Tax, Think Tank Reports | Permalink | Comments (8)

Yale:  Anti-Basis

Ethan Yale (Virginia), Anti-Basis, 94 N.C. L. Rev. 485 (2015):

Anti-basis is the untaxed benefit enjoyed by a taxpayer when a liability or obligation is incurred. In the business context, the untaxed benefit is an increase in asset basis or a tax deduction. In the personal context, the untaxed benefit might take one of those forms, or it might be (nondeductible) personal consumption. A well-functioning income tax system must keep track of any such untaxed benefit. If the liability from which the benefit derived is avoided by the taxpayer, the prior untaxed benefit must be taken into income (or must reduce basis). If there was no prior untaxed benefit relating to a liability, exceptions are necessary to various rules requiring income recognition (or basis reduction) on discharge or shifting of liabilities.

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June 1, 2016 in Scholarship, Tax | Permalink | Comments (0)

Schmalbeck & Soled:  Unifying Depreciation Recapture

Richard L. Schmalbeck (Duke) & Jay A. Soled (Rutgers), Unifying Depreciation Recapture, 48 Conn. L. Rev. 531 (2015):

To achieve fairness and accuracy, an income tax system must accomplish two objectives: allow depreciation deductions for the erosion in the value of assets used to produce income, and correct errors that may result from excessive depreciation allowances. The Internal Revenue Code currently fares well in accomplishing the first objective but conspicuously fails to achieve the second.

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June 1, 2016 in Scholarship, Tax | Permalink | Comments (0)

SLU Law School 'Right-Sizes' By 47% Enrollment Reduction, 5 Faculty Buyouts; Faculty May View Consultant's Report Only In Presence Of Dean's Assistant After Signing NDA

St. Louis (2016)St. Louis Post-Dispatch, SLU Law School Redefines Itself:

Three years after moving downtown, people in the know say SLU’s law school is a different institution than the one formerly housed on the Midtown campus.

It has quietly reduced staff and bought out faculty members as the number of students has declined to 502 in 2015 from 954 in 2010.

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June 1, 2016 | Permalink | Comments (4)

The 69 Most-Cited Law Faculties (And The Most-Cited Tax Faculty At Those Schools)

Gregory C. Sisk (University of St. Thomas) et al.,  Scholarly Impact of Law School Faculties in 2015: Updating the Leiter Score Ranking for the Top Third, 12 U. St. Thomas L.J. 100 (2015):

This study explores the scholarly impact of law faculties, ranking the top third of ABA-accredited law schools. Refined by Professor Brian Leiter, the “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured members of that law faculty. In addition to a school-by-school ranking, we report the mean, median, and weighted score, along with a listing of the tenured law faculty members at each ranked law school with the ten highest individual citation counts.

1.   Yale
2.   Harvard
3.   Chicago
4.   NYU
5.   Stanford
6.   UC-Irvine
7.   Columbia
8.   Duke
9.   Vanderbilt, UC-Berkeley
11.  Pennsylvania
12.  Northwestern
13.  Cornell, UCLA
15.  Michigan, Georgetown
17.  Virginia, George Washington
19.  Minnesota
20.  Texas
21.  George Mason, Washington University, Boston University
24.  UC-Davis
25.  Case Western, Notre Dame
27.  Illinois, Emory
29.  Cardozo, Arizona, Colorado, Ohio State
33.  North Carolina, Brooklyn
35.  Indiana, Utah, Fordham, San Diego
39.  Florida State, Arizona State, USC, St. Thomas, Iowa
44.  UC-Hastings, William & Mary, Maryland
47.  BYU, Hofstra, Washington & Lee
50.  UNLV, Pittsburgh
52.  Temple, Wake Forest, Florida, Chicago-Kent, Alabama
57.  Georgia, Houston, Loyola-L.A., American, Boston College
62.  Missouri, Toledo
64.  DePaul, Rutgers-Camden, Kansas, Tulane, Hawaii, San Francisco

Here are the 17 Tax Profs among the 10-most cited faculty at the Top 69 law schools:

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June 1, 2016 in Law School Rankings, Legal Education, Tax | Permalink | Comments (0)

Subscribing To TaxProf Blog

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June 1, 2016 in About This Blog, Legal Education, Tax | Permalink | Comments (0)

Villanova Law School Graduate:  One Degree, 2+ Sugar Daddies, Zero Debt

Sugar BabyPhilly Voice, Villanova Law Graduate: One Degree, 2+ Sugar Daddies, Zero Debt:

Candice Kashani graduated from law school debt-free this spring, thanks to a modern twist on an age-old arrangement.

During her first year, she faced tuition and expenses that ran nearly $50,000, even after a scholarship. So she decided to check out a dating website that connected women looking for financial help with men willing to provide it, in exchange for companionship and sex — a "sugar daddy" relationship as they are known.

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June 1, 2016 in Legal Education | Permalink | Comments (11)

Morrissey:  Saving Legal Education

Daniel J. Morrissey (Former Dean, Gonzaga), Saving Legal Education, 56 J. Legal Educ. 25 (2006):

This piece describes the difficult situation that legal education finds itself in. While law schools offer programs that are more enriching than ever, they do so at much higher costs than in previous decades. The resulting tuition increases have causes graduating students to become burdened with large debts. At the same time, their employment, particular for those at non-elite law schools, have become more problematic. The article provides ample statistics and examples to support these disturbing trends.

June 1, 2016 in Legal Education, Scholarship | Permalink | Comments (2)

The IRS Scandal, Day 1119

IRS Logo 2Des Moines Register editorial, Facts Fail to Support IRS Impeachment Effort:

The aphorism known as Hanlon’s razor dictates that one should never attribute to malice that which is adequately explained by stupidity.

Where some people see evil intent and conspiracies behind every misdeed, the more likely explanation is good old-fashioned incompetence. That's particularly true in Washington, D.C., where, despite the political machinations that seem to drive every decision, bureaucratic bungling is responsible for most of the federal government's sins.

Even so, some Republican leaders in the House believe IRS Commissioner John Koskinen has engaged in a long-running effort to deceive Congress and the public. As they see it, Koskinen should be impeached for his response to claims that the agency targeted conservative organizations that sought tax-exempt status. ...

The Justice Department investigated the matter for two years and ultimately concluded that there was no evidence that IRS officials had acted out of political bias in focusing on any organizations, conservative or otherwise.

Given all of that, the effort to impeach Koskinen appears to be a face-saving move by Chaffetz to justify his fruitless, six-year campaign to demonize the IRS for political bias.

Even Fred Goldberg, who served as IRS commissioner under the first President George Bush, says Chaffetz’s allegations are “preposterous” and calls the impeachment effort “way over the line.”

When it comes to abuse of power, Chaffetz has more to answer for than Koskinen.

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June 1, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (9)

Tuesday, May 31, 2016

NY Times:  In Secret Meeting At White House, IRS Officials Pressed On ObamaCare Subsidies

New York Times, In a Secret Meeting, Revelations on the Battle Over Health Care:

On Jan. 13, 2014, a team of Internal Revenue Service financial managers piled into government vans and headed to the Old Executive Office Building for what would turn out to be a very unusual meeting.

Upon arrival, the I.R.S. officials, some of whom had expressed doubts that the Obama administration had the proper authority to spend billions of dollars on a crucial element of its health care law, were ushered into a conference room.

There, they were presented with an Office of Management and Budget memo laying out the administration’s justification for spending $3.9 billion on consumer health insurance subsidies. They were told they could read it but could not take notes or make copies. The O.M.B. officials left the room to allow their visitors a moment to absorb the document, and then returned to answer a few questions and note that Attorney General Eric H. Holder Jr. had been briefed and signed off on the legal rationale.

“It was not a common practice in my 10 years in government at the three agencies where I worked,” said David Fisher, a former I.R.S. financial risk officer, recounting the odd meeting during a deposition on May 11 conducted by investigators for the House Ways and Means Committee.

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May 31, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

White:  Cost Sharing Agreements And The Arm's Length Standard

Florida Tax Review  (2015)Sienna Carly White (Jones Day, Cleveland), Cost Sharing Agreements & The Arm's Length Standard: A Matter of Statutory Interpretation?, 19 Fla. Tax Rev. ___ (2016):

The arm’s length standard has been the touchstone of international transfer pricing and Internal Revenue Code Section 482 for the better part of a century, but its relevance is under scrutiny. A growing consensus among the international community suggests the arm’s length standard is no longer adequate to accurately and fairly tax the multinational enterprises that make up the modern global economy. In this paper, I examine the implications of the Xilinx saga and conclude that both the Ninth Circuit and the IRS were incorrect: the arm’s length standard should function as a legal principle, with explicit exceptions, rather than as a legal rule.

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May 31, 2016 in Scholarship, Tax | Permalink | Comments (0)

Students Protest Elimination Of 'Covered' Freshman Year Grades At Johns Hopkins

Johns Hopkins 2Baltimore Sun, Grading Policy Change Draws Protests at Johns Hopkins:

Plans to end a decades-old policy of concealing the first-semester grades of freshman at the Johns Hopkins University from graduate school admissions officers and future employers are drawing outrage from students.

Hopkins has been one of the few schools nationwide that "cover" the grades of their newest students, shielding them on transcripts and keeping them out of grade-point averages as the freshmen make the transition to college.

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May 31, 2016 in Legal Education | Permalink | Comments (0)

Gerzog:  Toward A Reality-Based Estate Tax

Wendy Gerzog (Baltimore), Toward a Reality-Based Estate Tax, 57 B.C. L. Rev. ___ (2016):

Currently, the estate tax does not accurately value the property and transactions that it is meant to cover. Additionally, the marital and charitable deductions do not reflect actual associated transfers, instead skewing their benefits away from their purported beneficiaries. This Article proposes reforming the estate tax by eliminating these sources of unreality and distortion, and to make the current estate tax a reality-based tax.

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May 31, 2016 in Scholarship, Tax | Permalink | Comments (1)

WSJ:  Estate Planning Expert Natalie Choate Reaches Age 70½, Offers IRA Withdrawal Advice

Wall Street Journal Tax Report:  When the IRA Expert Reaches Her Own Withdrawal Age: Natalie Choate Offers Tips for Taking Mandatory Withdrawals From IRAs, by Laura Saunders:

ChoateThe first U.S. baby boomers are turning 70 this year. For many, another landmark will soon follow: at 70½ they begin taking mandatory withdrawals from their individual retirement accounts.

Among those turning 70½ this year is Natalie Choate, a Harvard University-trained lawyer who literally wrote the book on IRAs and estate planning [Life and Death Planning for Retirement Benefits (7th ed. 2011]. She has spoken on the subject across the country, specializing in retirement-plan law since Congress established IRAs as part of a massive overhaul in 1974.

Ms. Choate, born in 1945, will soon publish her latest book, titled “70½”, as she is now facing her own required IRA payouts. In theory, Ms. Choate should have no problem.

But Ms. Choate is finding her withdrawals more complex than she expected. “Now I have sympathy for average people facing these decisions,” she says. ...

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May 31, 2016 in Book Club, Tax | Permalink | Comments (0)

Update On Murder-For-Hire Investigation Into Dan Markel's Death

NY Times:  IRS Ruling Is Obstacle To Health Care Networks Promoted By Obama

New York Times, I.R.S. Ruling Is Obstacle to Health Care Networks Promoted by Obama:

A ruling by the Internal Revenue Service creates a significant obstacle to a new type of health care network that the Obama administration has promoted as a way to provide better care at lower cost, industry lawyers and providers say.

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May 31, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

The Perils Of Writing A Provocative Email At Yale

Yale University LogoThe Atlantic, The Perils of Writing a Provocative Email at Yale:

Last fall, student protesters at Yale University demanded that Professor Nicholas Christakis, an academic star who has successfully mentored Ivy League undergraduates for years, step down from his position as faculty-in-residence at Silliman College, along with his wife, Erika Christakis, who shared in the job’s duties.

The protesters had taken offense at an email sent by Erika Christakis.

Dogged by the controversy for months, the couple finally resigned their posts Wednesday. Because the student protests against them were prompted by intellectual speech bearing directly on Erika Christakis’s area of academic expertise, the outcome will prompt other educators at Yale to reflect on their own positions and what they might do or say to trigger or avoid calls for their own resignations. If they feel less inclined toward intellectual engagement at Yale, I wouldn’t blame them.

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May 31, 2016 in Legal Education | Permalink | Comments (5)

The IRS Scandal, Day 1118

IRS Logo 2Wall Street Journal op-ed:  Clinton Embodies Washington’s Decadence, by Peggy Noonan:

She breaks the rules and gets away with it every time. No wonder voters are fed up. ...

The lack of backlash against Mr. Trump’s attacks on Mrs. Clinton, though, I suspect is due to something else. It’s that the subject matter really comes down to one word: decadence. People right now will respect a political leader who will name and define what they themselves see as the utter decadence of Washington. ...

[T]he real decadence Americans see when they look at Washington is an utterly decadent system. Just one famous example from the past few years: 

A high official in the IRS named Lois Lerner targets those she finds politically hateful. IRS officials are in the White House a lot, which oddly enough finds the same people hateful. News of the IRS targeting is about to break because an inspector general is on the case, so Ms. Lerner plants a question at a conference, answers with a rehearsed lie, tries to pin the scandal on workers in a cubicle farm in Cincinnati, lies some more, gets called into Congress, takes the Fifth—and then retires with full pension and benefits, bonuses intact. Taxpayers will be footing the bill for years for the woman who in some cases targeted them, and blew up the reputation of the IRS.

Why wouldn’t Americans think the system is rigged?

This is Washington in our era: a place not so much of personal as of civic decadence, where the Lois Lerner always gets away with it.

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May 31, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

TaxProf Blog Holiday Weekend Roundup

Monday, May 30, 2016

Memorial Day Tax Resources For U.S. Armed Forces (And Their Families, Employers)

IwaContinuing a TaxProf Blog Memorial Day tradition, I want to pass along links to the Tax Information for Members of the U.S. Armed Forces material maintained on the IRS web site:

The tax laws provide some special benefits for active members of the U.S. Armed Forces, including those serving in combat zones. For federal tax purposes, the U.S. Armed Forces includes officers and enlisted personnel in all regular and reserve units controlled by the Secretaries of Defense, the Army, Navy and Air Force. The Coast Guard is also included, but not the U.S. Merchant Marine or the American Red Cross. However, these and other support personnel may qualify for certain tax deadline extensions because of their service in a combat zone.

For dozens of links to military tax resources, see below the fold.

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May 30, 2016 in Tax | Permalink | Comments (0)

Former Assistant Dean For Bar Prep/Academic Success Sues Law School For Gender Discrimination, Says 'All-Female Management Team' Made Him Fall Guy For Poor Bar Results Caused By Systemic Problems At School

MoueryOrlando Sentinel, Ex-Law School Official Alleges Discrimination After He Was Fired From Job:

A man who was fired from his job at an Orlando law school accused the university of discrimination because he was a man in senior leadership when students struggled to pass the bar exam, according to a lawsuit filed this week.

David Mouery, the former assistant dean for bar preparation and academic success, said Barry University singled him out and disciplined him after the test results were released last year, court documents said.

He sued Barry University for gender discrimination and retaliation in Orange County Circuit Court. ...

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May 30, 2016 in Legal Education | Permalink | Comments (8)

Talking The Talk Or Walking The Walk Of Legal Education Reform

Educating Tomorrow's Lawyers (2016)Keith R. Lee (Hamer Law Group, Birmingham, AL), Ten Years of IAALS: Walking the Walk with Legal Education Reform:

There is lots of talk about making changes in legal education at law schools. That's no surprise, law professors love to talk. If they loved practicing law, they'd be lawyers. Instead, ensconced in the ivory tower, safe from the perils of the real world, they leisurely debate what should happen to those poor souls (law students) who must leave the hallowed halls of law school, and actually go out in the world to practice law.

If you can't tell, I'm not particularly sympathetic or supportive.

Since we're talking about legal education, here's a hypothetical:

A 10-mile bicycle race is going to take place one year hence. There are two competitors, Adam and Barbara.

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May 30, 2016 in Legal Education | Permalink | Comments (6)

The IRS Scandal, Day 1117

IRS Logo 2Congressional Research Service, Impeachment and Removal (R44260):

The impeachment process provides a mechanism for removal of the President, Vice President, and other “civil Officers of the United States” found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach an individual in the hands of the House of Representatives. Should a simple majority of the House approve articles of impeachment specifying the grounds upon which the impeachment is based, the matter is then presented to the Senate, to which the Constitution provides the sole power to try an impeachment. A conviction on any one of the articles of impeachment requires the support of a two-thirds majority of the Senators present.

Should a conviction occur, the Senate retains limited authority to determine the appropriate punishment. Under the Constitution, the penalty for conviction on an impeachable offense is limited to either removal from office, or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.” Although removal from office would appear to flow automatically from conviction on an article of impeachment, a separate vote is necessary should the Senate deem it appropriate to disqualify the individual convicted from holding future federal offices of public trust. Approval of such a measure requires only the support of a simple majority.

Key Takeaways of This Report

  • The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal “civil officers” upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.
  • A simple majority of the House is necessary to approve articles of impeachment.
  • If the Senate, by vote of a two-thirds majority, convicts the official on any article of impeachment, the result is removal from office and, at the Senate’s discretion, disqualification from holding future office.
  • The Constitution does not articulate who qualifies as a “civil officer.” Most impeachments have applied to federal judges. With regard to the executive branch, lesser functionaries—such as federal employees who belong to the civil service, do not exercise “significant authority,” and are not appointed by the President or an agency head—do not appear to be subject to impeachment. At the opposite end of the spectrum, it would appear that any official who qualifies as a principal officer, including a head of an agency such as a Secretary, Administrator, or Commissioner, is likely subject to impeachment.
  • Impeachable conduct does not appear to be limited to criminal behavior. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.
  • The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals—all federal judges—were convicted by the Senate.

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May 30, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Sunday, May 29, 2016

How Will I Know?  IRS Claims Whitney Houston's Estate Undervalued Her Right Of Publicity By $11.5 Million

WhitneyFollowing up on my previous posts (links below) on the IRS's battle with the estate of Michael Jackson over the value of the singer's publicity rights:  Hollywood Reporter, Whitney Houston Estate Challenges $11 Million Tax Bill:

The heirs of late pop star Whitney Houston are now in Tax Court over what the Internal Revenue Service claims is owed in estate taxes.

In a May 23 petition, now sealed and first reported by Bloomberg, the Whitney Houston estate objected to the determination that $22.6 million has been underreported, which the IRS claims means that more than $11 million is owed, including $3 million in penalties.

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May 29, 2016 in Celebrity Tax Lore, Tax | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #4 and #5:

  1. [429 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)
  2. [366 Downloads]  Google's 'Alphabet Soup' in Delaware, by Bret Bogenschneider (Vienna) & Ruth Heilmeier (Cologne)
  3. [293 Downloads]  New Prominence Of Tax Basis In Estate Planning, by Paul L. Caron (Pepperdine) & Jay A. Soled (Rutgers)
  4. [162 Downloads]  'Death Tax' Politics, by Michael J. Graetz (Columbia)
  5. [156 Downloads]  Supercharged IPOs, the Up-C, and Private Tax Benefits in Public Offerings, by Gladriel Shobe (BYU)

May 29, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Report:  Harvard Law Prof Hid Far Left Views To Chair Hiring Committee And 'Heavily Influence Hiring Critical Race Theorists'

Harvard Law School (2016)Daily Caller, Leaked Document Shows Harvard Students, Profs Planning To Make School Even More Liberal:

Leaked notes from an alleged meeting between Harvard Law School (HLS) professors and student activists shows them planning how to coordinate their efforts in order to take the school in a more institutionally left-wing direction.

The notes also suggest that at least one professor at Harvard may be concealing the full extent of his liberal views in order to be appointed to positions where he can shape the university’s politics more decisively.

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May 29, 2016 in Legal Education | Permalink | Comments (9)

The IRS Scandal, Day 1116

IRS Logo 2Bloomberg BNA, Conservative Group's IRS Targeting Claim Can Move Forward:

A conservative organization arguing the IRS targeted its application for tax-exempt status based on its political views demonstrated that its claim of unconstitutional targeting has merit, and can continue in federal district court.

The U.S. District Court for the Northern District of Texas on May 25 rejected the government's motion to dismiss Freedom Path Inc.'s First Amendment claim that the Internal Revenue Service subjected the group's applications for tax-exempt status to higher scrutiny, flagging groups that had “conservative sounding names.”

Freedom Path v. Lois Lerner, No. 3:14-CV-1537-D (N.D. TX May 25, 2016):

Freedom Path alleges that the federal defendants have denied its rights guaranteed by the First Amendment by targeting its application for tax-exemption and subjecting it to heightened scrutiny because of Freedom Path’s conservative viewpoint. Freedom Path points to the federal defendants’ “policy and practice of submitting [to Freedom Path] the unconstitutionally and overly intrusive requests for information” that caused an unreasonable delay in the determination of Freedom Path’s tax-exempt status.

The federal defendants contend that the conduct complained of in count IV has been remedied, and that Freedom Path’s claims are therefore moot. According to the federal defendants, the IRS no longer engages in heightened scrutiny nor issues improper requests for information. ...

Freedom Path complains that its application for tax-exemption has been unconstitutionally targeted and subjected to heightened scrutiny. Freedom Path also alleges that the IRS sent it inappropriate and unconstitutional requests for information.

Although the federal defendants have adduced some evidence that the IRS no longer uses BOLO lists and that the IRS has made efforts to train its employees on how to issue proper information requests, Freedom Path has demonstrated that its general complaints of unconstitutional targeting, heightened scrutiny, and improper requests for information still present a live controversy.

The cases on which the federal defendants rely—True the Vote and Linchpins of Liberty—were decided under distinguishable facts. In True the Vote the court held that the plaintiff’s allegations of unconstitutional targeting and heightened scrutiny were moot because the IRS had granted the plaintiff tax-exempt status.  Accordingly, the plaintiff’s injury claim was moot. ... In Linchpins of Liberty the plaintiff specifically complained of the use of BOLO lists, but it also alleged that the IRS was no longer using the lists. The termination of the complained-of conduct (the use of BOLO lists) therefore rendered the claim moot. In contrast, Freedom Path’s allegations in count IV are not limited to the use of BOLO lists, it has not pleaded that the BOLO lists are no longer in use, and its application for tax-exempt status has not been granted. The allegations of count IV are not moot. ...

The federal defendants contend that Freedom Path lacks constitutional standing, which requires that a litigant establish three elements: (1) an injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendants’ actions; and (3) that the injury will likely be redressed by a favorable decision. ... The federal defendants maintain that Freedom Path lacks standing to bring the claims asserted in counts IV, VI, VII, and VIII because it has not alleged impending, future injury that is real and immediate rather than conjectural or hypothetical. ...

Freedom Path responds that it primarily complains of injury from the “multi-pronged offensive” and “larger pattern” of viewpoint discrimination in the application of Revenue Ruling 2004-6. It cites Z Street, Inc. v. Koskinen, 44 F.Supp.3d 48 (D.D.C. 2014), aff’d, 791 F.3d 24 (D.C. Cir. June 19, 2015), to demonstrate that it has no other recourse against defendants for their illegal scheme. ... Freedom Path alleges that while it awaits the determination of its tax-exempt status, it must “continue curtailing similar speech [to the Leader advertisement] in the future.” ...

Freedom Path has sufficiently pleaded future harm to establish injury in fact. ... It alleges that it will curtail its publication of advertisements similar to the Leader advertisement and that it has ceased raising funds and undertaking advocacy work because of uncertainty about how the IRS will apply Revenue Ruling 2004-6. The court denies the federal defendants’ motion to dismiss counts IV, VI, VII, and VIII based on alleged lack of standing.

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May 29, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Saturday, May 28, 2016

Memorial Day Weekend In Our Pepperdine Neighborhood (And On CBS News)


Amazingly, no one was hurt when a car flew into our neighborhood pool at 6:00 p.m. tonight.

Update #1:  I finally made it on CBS News — not as a tax expert, but as a photographer:

Update #2:

May 28, 2016 in Legal Education, Tax | Permalink | Comments (3)

This Week's Ten Most Popular TaxProf Blog Posts

Study Shatters Myth That Millionaires Migrate To Low Tax States

Cristobal Young (Stanford), Charles Varner (Stanford), Ithai Z. Lurie (U.S. Treasury Department, Office of Tax Analysis) & Richard Prisinzano (U.S. Treasury Department, Office of Tax Analysis), Millionaire Migration and Taxation of the Elite: Evidence from Administrative Data, 81 Am. Sociological Rev. 421 (2016):

All StatesA growing number of U.S. states have adopted “millionaire taxes” on top income-earners. This increases the progressivity of state tax systems, but it raises concerns about tax flight: elites migrating from high-tax to low-tax states, draining state revenues, and undermining redistributive social policies. Are top income-earners “transitory millionaires” searching for lower-tax places to live? Or are they “embedded elites” who are reluctant to migrate away from places where they have been highly successful? This question is central to understanding the social consequences of progressive taxation. We draw on administrative tax returns for all million-dollar income-earners in the United States over 13 years, tracking the states from which millionaires file their taxes. Our dataset contains 45 million tax records and provides census-scale panel data on top income-earners. We advance two core analyses: (1) state-tostate migration of millionaires over the long-term, and (2) a sharply-focused discontinuity analysis of millionaire population along state borders. We find that millionaire tax flight is occurring, but only at the margins of statistical and socioeconomic significance.

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May 28, 2016 in Scholarship, Tax | Permalink | Comments (8)

Missouri Law School Dean Resigns Day After Lawsuit Filed Seeking Public Records Of Law Prof Running For Attorney General

MyersABC17 News, MU Law School Dean Says Decision to Step Down Not Linked to Lawsuit:

The dean of the University of Missouri Law School [Gary Myers, right] says his decision to step down is not related to the lawsuit filed this week related to the state's Sunshine Law.

This comes after a former state representative [Kevin Elmer] filed a lawsuit against Josh Hawley over an apparent unfulfilled open records request. Hawley is an MU law professor who running for Missouri Attorney General. Myers was also named in the suit.

Dean Myers apparently raised concerns to the university nearly three weeks after Elmer requested the records. Myers thought a request for Hawley's tenure application would threaten "the integrity of the University's tenure procedures," and hoped the system would keep in mind "these important institutional considerations" when sorting through the documents. ...

The lawsuit claims the university allowed Hawley to first review his emails before letting the UM System's custodian of records, Paula Barrett, begin processing Elmer's request. While some email correspondences may be exempt from public record, such as personal student information, the lawsuit claims the university broke the law by allowing Hawley that review.

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May 28, 2016 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 1115

IRS Logo 2Roll Call op-ed:  Impeachment of IRS Chief Is a Serious Misstep, by Stephen M. Ryan (McDermott Will & Emery, Washington, D.C.):

On November 9, 2017, well into the Clinton or Trump Administration, IRS Commissioner John Koskinen’s term will expire. Koskinen, like FBI Director James Comey, is a Senate-confirmed executive who has a term of office making him independent of the president’s term. Koskinen will be lauded at that time as a man of integrity who not only kept the IRS on life support while under constant attack but who provided the necessary leadership and integrity to drive the agency forward to better serve taxpayers.

Impeachment of federal office holders is reserved for those who commit high crimes or misdemeanors. Unfortunately, the House of Representatives seems determined to have a go at Koskinen for reasons that are political and unworthy of impeachment. ... Koskinen is an exemplary public official. He should be getting an award for his service, not this type of attention. He has not done anything wrong personally. Impeachment in the absence of crimes or unethical behavior, none of which has occurred here, is a dangerous precedent that has not been part of the U.S. experience and could dissuade experienced, competent executives like Koskinen from accepting appointment to senior management positions within government. ...

In essence, the claim is he failed to respond to lawfully issued congressional subpoenas and engaged in “a pattern of deception” in statements pertaining to the IRS production of emails, and failed to act with competence in overseeing the investigation into IRS’s treatment of conservative groups. The proponents’ case that Koskinen committed high crimes and misdemeanors depends upon issues he did not control. But Koskinen wasn’t even at the IRS when the scandal occurred, and he certainly was not leading the search for documents to respond to congressional requests. Republican members of Congress are rightfully upset that IRS employees in West Virginia magnetically erased hundreds of backup tapes in March 2014, destroying some of former IRS official Lois Lerner’s emails. While IRS recycling the backup tapes was dumb as a bag of hammers, Koskinen did not engage in that activity.

Can these alleged transgressions by the IRS be attributed to the new commissioner or rise to the level of an impeachable offense by him or contempt of Congress? Clearly, the answer is no. ...

Koskinen is what he appears to be — an exemplary public servant who heads an agency in disarray; while his 76-year-old peers are fishing or golfing. People with Koskinen’s skill-set are incredibly hard to find in public service. One can only hope that this impeachment resolution — and the personal nature of its assertions — won’t cause others to turn away from public service, depriving the government of the seasoned, competent executives that it desperately needs.

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May 28, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Friday, May 27, 2016

Weekly Tax Roundup

Weekly Legal Education Roundup

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

Penn State Law Faculty 'Discontent' Amidst Failed Dean Search, Two Year 'Downward Descent (From #51) Into Rankings Oblivion (#86)'

Penn State Logo (2016)Kimberly Krawiec (Duke), Rumblings of Discontent at Penn State Law:

Penn State Law’s dean search has been unsuccessful (announced to the faculty by the provost) and that at least some faculty have been unhappy with the search process and a perceived lack of faculty input. ... [T]he complaints apparently include search committee composition, a lack of openness and communication during the search process, the way in which candidates were vetted, and whether (or the extent to which?) faculty are polled on their views of candidates. Some of the discontent may also stem from the law school’s recent rankings drop. As Above the Law reported in March:

Penn State, fresh off separating its campuses into two separate law schools, continues its downward descent into oblivion by losing another 15 spots in the rankings, following up on a 20-spot drop just last year. To think, Penn State was once so close to being ranked as a Top 50 school.

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May 27, 2016 in Law School Rankings, Legal Education | Permalink | Comments (1)

GAO:  IRS's 1950s Computer System Is Federal Government's Oldest, Putting Taxpayer Information At Risk

GAO (2016)Government Accountability Office, Federal Agencies Need to Address Aging Legacy Systems (GAO- 16-696T):

Federal legacy IT investments are becoming increasingly obsolete: many use outdated software languages and hardware parts that are unsupported. Agencies reported using several systems that have components that are, in some cases, at least 50 years old. For example, ... the Department of the Treasury uses assembly language code—a computer language initially used in the 1950s and typically tied to the hardware for which it was developed.  ... The following table provides examples of legacy systems across the federal government that agencies report are 30 years or older and use obsolete software or hardware, and identifies those that do not have specific plans with time frames to modernize or replace these investments.

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May 27, 2016 in Gov't Reports, IRS News, Tax | Permalink | Comments (4)

Oyez Supreme Court Media Project Leaves Chicago-Kent For Cornell, Justia

OyezNational Law Journal, 'Oyez Project' New Home Will Keep Supreme Court Audio Free to Public:

After months of uncertainty about its future, the Oyez Project, a free repository of more than 10,000 hours of U.S. Supreme Court oral-argument audio and other court resources, has found a new home.

The project’s founder, Jerry Goldman, who is retiring soon, told The National Law Journal on Tuesday that a newly minted arrangement with Cornell University’s Legal Information Institute and Justia, the online publisher of legal information, will keep Oyez alive. ...

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May 27, 2016 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 1114

IRS Logo 2Wall Street Journal editorial, Instant Document Destruction at the IRS:

Has the Internal Revenue Service been systematically evading federal record-keeping laws? On Monday the Cause of Action Institute sued the IRS and commissioner John Koskinen for refusing to preserve electronic employee communications that concern official business.

Cause of Action says that in 2010 the IRS struck a little-noticed agreement with the National Treasury Employees Union not to record employees’ instant messages. The watchdog group also says that in response to its Freedom of Information Act requests for text messages sent by senior IRS officials, the agency replied that due to “routine system housekeeping” and “spacing constraints,” IRS text messages are retained for only 14 days before they are deleted.

Both actions appear to violate the Federal Records Act that requires agencies to preserve all relevant documents. The agency says it retains emails, at least those that don’t disappear in mysterious computer crashes. But if employees can send text messages and not save them, they can avoid records retention. “No agreement with a union or any other party can supersede Americans’ right to know how the IRS makes decisions,” says Cause of Action. “In addition, the IRS is violating the law by regularly deleting all employee text messages as a matter of convenience.”

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May 27, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)